United States v. Altagracia Sosa ( 1992 )

USCA1 Opinion

          September 21, 1992     NOT FOR PUBLICATION
                                 NOT FOR PUBLICATION
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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          No. 92-1356

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                 LUZ ALTAGRACIA SOSA,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Raymond L. Acosta, U.S. District Judge]
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                                        Before

                                 Breyer, Chief Judge,
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                           Campbell, Senior Circuit Judge,
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                            and Torruella, Circuit Judge.
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                                 ____________________

                Lydia Lizarribar-Masini, was on brief for appellant.
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                Jos  A. Quiles, Assistant United States Attorney, with whom
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          Daniel F. L pez-Romo,  United States Attorney, were on  brief for
          ____________________
          appellee.



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                    PER CURIAM.   Appellant pled guilty  to possession with
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          intent  to distribute  561.1 grams  net weight  of cocaine.   The

          district court then sentenced  appellant to the statutory minimum

          sentence  of  sixty  months  in  prison  pursuant  to  21  U.S.C.

            841(b)(1)(B)(ii).  Because appellant's  co-defendants possessed

          fewer  than 500 grams of cocaine, they received sentences of only

          33  months each.  Neither the United States nor appellant dispute

          the 60 month sentence.

                    During  the  sentencing  hearing,  however,  the United

          States  offered   evidence  that  appellant   recruited  her  co-

          defendants to commit  their crimes.  The government contends that

          it  obtained this  evidence  from  a  co-defendant's  presentence

          report.  The government never revealed this evidence to appellant

          prior  to the sentencing hearing.  As such, appellant requested a

          copy  of the  presentence report  and a  continuance in  order to

          rebut the new allegation.  The trial judge denied this request.

                    Because this court may only review the district court's

          decision  in this case for  clear error, United  States v. Panet-
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          Collazo, 960  F.2d 256,  262 (1st Cir.  1992), and we  have found
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          none,  we  affirm.   The  court  properly  assigned  the  minimum

          statutory sentence available to appellant.   

                    Both the United States  and appellant have informed us,

          however, that the new allegation in the sentencing hearing record

          allows the Federal Correction Authority to apply more restrictive


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          incarceration measures to appellant pursuant  to the government's

          classification  procedure.  Because  appellant had no opportunity

          to  rebut the  new  allegation, we  urge  the United  States  and

          appellant to  address this  matter together  with  the Bureau  of

          Prisons   to    insure   that   appellant   receives   a   proper

          classification.

                    Affirmed.
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